"I've never heard of Far Cry," says P2P defendant

[DaBees-Knees]

http://arstechnica.com/tech-policy/news/2010/05/far-cry-innocence.ars

Last week, the law firm of Dunlap, Grubb, & Weaver dropped a letter in the mail. A few days ago it was opened by a woman whom we'll call Sabine (she asked that her identity be kept private, and some details and dates of her case have been altered to maintain anonymity), and it informed her that she had been identified swapping the film Far Cry on peer-to-peer (P2P) networks during the night of March 22.

Sabine could pay the lawyers (they accept credit cards) $1,500 by early June to make the problem go away, said the letter. Waiting until the end of June increased the payoff amount to $2,500.

The offer was "extremely reasonable," in the lawyers' view. "While it is too late to undo the illegal file sharing you have already done, we have prepared an offer to enable the rights holder to recoup the damages incurred by your actions, and defray the costs of preventing this type of activity in the future."

Should Sabine not pay up, the consequences could be life-altering. Dunlap, Grubb, & Weaver could take her to court, where the lawyers would try to prove her actions "intentional." And once they did that, "our client will be seeking the maximum statutory damages allowed by the Copyright Act in the amount of $150,000 per infringement, attorneys' fees and costs."

The demand is breathtaking. While the Copyright Act does in fact allow a maximum of $150,000 per infringement, rightsholders rarely ask for this astonishing amount against individual P2P users. The recording industry, over years of lawsuits, famously refused ever to ask juries for this specific amount. The industry, whatever its faults, was attuned to the optics of the situation, and trying to crush young people beneath a mountain of unpayable debt for file-swapping isn't the sort of thing most public relations professionals want to do.

Neither do juries. In the two most famous P2P cases from the music industry campaign, juries awarded wildly variable amounts of $9,250, $80,000, and $22,500 per song infringed (the Jammie Thomas-Rasset case was retried, resulting in a second judgment). Left to their own devices, no jury thought $150,000 was close to appropriate.

Sabine faces an unpleasant choice: pay a couple thousand dollars or take her chances in court, where a lawyer of her own would cost thousands and where losing could bankrupt her. This might serve as a cautionary tale about the moral and legal issues surrounding file-swapping, a tough but necessary lesson, except for one detail—Sabine claims total innocence.

Details, details

Remarkably specific details in the letter conveyed an impression of omniscience and authority. Sabine had swapped the file at 3:24:12am. She had used Azureus 4.3.1.4 as her P2P client of choice. Her file had a 32-character hash value, which the letter duly noted in its full upper-case glory. Her IP address had been recorded.

Despite the detail, Sabine insists that the lawyers got it wrong.

"I've never heard of Far Cry. I've never heard of any of the BitTorrent technology, I've never used it," said Sabine when I spoke to her this week. As for Azureus, she claims never to have heard of it.

Even the basics of P2P network were a mystery. "[I was] vaguely familiar with it," she said. "After getting this letter, I looked it up myself just to find out what it was."

Her overriding reaction: "Shock."

Sabine does use Verizon as her ISP, so that part of the letter was correct, but she says that she had been having connectivity issues with the service in the weeks before the alleged infringement. She notified Verizon about the issues, but worries that "someone has been pilfering my IP address." A WiFi network existed but was password-protected.

Saving cinema, one Doe at a time

Dunlap, Grubb, & Weaver has been acting for some time as the agents for infamous German director Uwe Boll, who is on a mission to reclaim the cash he thinks P2P users have denied him. Earlier this year, the firm filed a federal lawsuit against 2,049 "John Does" in a DC court. The number of Does later climbed to 4,577. All of them were accused of sharing Far Cry on the Internet.

Sabine's name and address had come from her Internet Service Provider (ISP), Verizon, which had produced it in response to a subpoena. Once ISPs like Verizon turn a Doe's IP address into a subscriber name and address, the legal letters fly out. Some ISPs, like Time Warner Cable, have claimed that the sheer number of address poses an expensive problem, and that the entire legal campaign has been improper. Other ISPs, like Verizon, have already started to comply with the subpoenas.

The case is one part of a broader campaign. Dunlap, Grubb, & Weaver has brought numerous such cases, representing independent filmmakers like those behind Call of the Wild and The Hurt Locker. In each case, hundreds or thousands of John Does have been sued.

According to the website of the US Copyright Group, a firm set up to coordinate the lawsuits, the cases are brought "at no cost." Profits from settlements and court judgment are apparently split between the filmmaker and the law firm on a contingency basis. "We are here to recover losses for copyright holders and to stop film piracy," says US Copyright Group. "We are here to SAVE CINEMA."

This entrepreneurial model for P2P copyright lawsuits is a novelty in the US, where most such cases have been brought by rightsholder trade groups to cut down on infringement. In this case, the goal appears to be monetizing infringement, and the cases are brought by a law firm that is actively recruiting clients.

It still remains unclear whether Dunlap, Grubb, & Weaver will take these cases to trial if people don't settle. Given the huge expense of a federal lawsuit, we remain doubtful that tens of thousands of actual trials are in the cards, especially given the small size of the firm (which is based is Leesburg, VA). The disparity between the settlement amounts ($1,500 and $2,500) and the threatened trial award request ($150,000) suggest the same thing; the firm doesn't truly want to be litigating these cases at trial. The prospect of massive court judgments works like a stick to bludgeon people into settlement—who could risk losing at trial with so much at stake?

The letter makes this clear. "We think that by providing our Doe defendants an opportunity to settle our client's claims for $1,500 instead of having to incur thousands of dollars in attorneys' fees and being at risk for a high jury verdict, our client is acting reasonably in good faith... we look forward to resolving our client's claim against you in an amicable fashion, through settlement."

Sabine doesn't yet know what she'll do. "I'm trying to seek some legal advice," she said, but she's leaning toward calling the firm's bluff. If they want to convert her "John Doe" lawsuit into a "named" lawsuit, let them.

"No one in my household has ever heard of Far Cry," she said.

""I've never heard of Far Cry. I've never heard of any of the BitTorrent technology, I've never used it," said Sabine"

This seems to be a typical example of what this breed of lawyers are trying to do. Accuracy in their accusations seems to be the last thing that they check on.